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United States Court of Appeals, Eleventh Circuit
United States Court of Appeals, Eleventh Circuit
United States Court of Appeals, Eleventh Circuit
2d 104
The appellants, four brothers who founded and operated the Theodoros
Vagenas Brothers Cotton Gin Company (hereinafter "Vagenas"), seek to
enforce a judgment rendered by a Greek court against Continental Gin
Company of Prattville, Alabama, and its parent, Allied Products Corporation
(hereinafter referred to together as "Continental"). In 1977, Vagenas contracted
with Continental to deliver and erect a cotton ginning factory in Trikala,
Greece. The parties subsequently modified the contract to provide for the
delivery and installation of the factory no later than November 28, 1978.
Continental agreed to compensate Vagenas for every day of delay beyond that
date.
The factory did not become operational until October 10, 1979. In 1980
Vagenas filed suit in the Multimember First Instance Court of Justice of Tikala,
Greece, against Continental to recover the compensation provided for by the
contract and the loss of profits suffered due to the delayed installation of the
factory. On January 3, 1981, the Greek court entered a declaratory judgment in
favor of Vagenas. Under Greek law and procedure, however, this declaratory
judgment is not enforceable, but is intended as a means to induce settlement
negotiations. Following a period of unsuccessful negotiations between the
parties to settle the matter, and in accord with Greek procedure, Vagenas
pursued the claim against Continental seeking an enforceable "affirmative
judgment." In September, 1985, the Greek court found Continental in default of
its contract with Vagenas and awarded the appellants damages for lost profits,
contract damages and court costs, all with interest at the lawful rate until the
judgment is satisfied.
Vagenas filed an action to enforce the foreign judgment in the Middle District
of Alabama and moved for summary judgment. Continental responded with a
motion for judgment on the pleadings, arguing that the Greek judgment was
unenforceable because the court lacked in personam jurisdiction, and because
the statute of limitations for enforcing the judgment had run. The district court
found the latter defense dispositive. Because Alabama law does not provide a
specific limitations period for actions to enforce foreign judgments, the court
held a two year "residual" limitation statute barred the suit, 789 F.Supp. 1137.
The district court rejected appellants' arguments that it should recognize the
principles of international comity as emphasized in a treaty between the United
States and Greece. Alternatively, they argued that the code section setting a
twenty year time limit for enforcement of sister state judgments should govern
the action because enforcement actions regarding sister state and foreign
country judgments are of the same essential nature and bear a close substantive
Vagenas contends the district court erred in applying the two year statute of
limitations to the Greek judgment, instead of a twenty year statute relating to
domestic judgments. Our review is plenary as the question on appeal is purely
one of law. See Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781,
1789, 72 L.Ed.2d 66 (1982). This cause is before the court by virtue of
diversity jurisdiction pursuant to 28 U.S.C. 1332, therefore, we must apply
the limitations period of the forum state. Erie Railroad Co. v. Tompkins, 304
U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Because the treaty
between the United States and Greece elevates the foreign judgment to the
status of a sister state judgment, we hold that twenty years is the proper
limitation period for this action under Alabama law.
In 1951 the United States and Greece signed the Friendship, Commerce and
Navigation Treaty, 5 U.S.T. 1829 [hereinafter Friendship Treaty], in which the
United States agreed to treat Greek nationals pursuing their rights in our courts
in a nondiscriminatory manner. Article VI, section 1, in pertinent part provides:
"Nationals and companies of either Party shall be accorded national treatment
and most-favored-nation treatment with respect to access to the courts of justice
... in all degrees of jurisdiction, both in pursuit and in defense of their rights."
Friendship Treaty, art. VI, 5 U.S.T. at 1851. Article XXIV, section 1, defines
national treatment as that treatment which is "accorded within the territories of
a Party upon terms no less favorable than the treatment accorded therein, in like
situations, to nationals, companies, products, vessels or other objects, as the
case may be, of such Party." Id., art. XXIV, 5 U.S.T. at 1907. A foreign
national is not exempt from state regulation if the law is applied equally to
nationals, companies, products, etc., of both the United States and Greece. See
id. Because the Friendship Treaty is the supreme law of the land, U.S. CONST.
art. VI, it effectively obligated the states to afford a Greek national the same
treatment that any United States citizen would receive in an action to enforce a
judgment. The treaty would preempt Alabama law if there were a conflict, but
none exists. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694,
699, 108 S.Ct. 2104, 2107, 100 L.Ed.2d 722 (1988).
The parties concede, and we agree, that Alabama does not provide a specific
limitations period for actions seeking enforcement of foreign country
judgments. There is only one section in chapter six of the code which even
references the enforcement of judgments. "Within 20 years, actions upon a
judgment or decree of any court of this state, of the United States or of any state
CONCLUSION
10
For the foregoing reasons, we VACATE the judgment of the district court and
REMAND for proceedings consistent with this opinion.
Honorable Frank A. Kaufman, Senior U.S. District Judge for the District of
Maryland, sitting by designation
For centuries courts have recognized that civil actions either arise from
contracts or torts. "A 'tort' has been defined broadly as a 'civil wrong, other than
breach of contract, for which the court will provide a remedy in the form of an
action for damages.' " United States v. Burke, --- U.S. ----, 112 S.Ct. 1867, 119
L.Ed.2d 34 (1992) (quoting W. Page Keeton et al., Prosser and Keeton on the
Law of Torts 1, at 2 (5th ed. 1984))